California & Hawaiian Sugar R. Corp. v. Winco Tankers, Inc., 6788.

• Decision Date: 24 January 1968
• Docket Number: No. 6788.,6788.
• Citation: 278 F. Supp. 648
• Parties: CALIFORNIA AND HAWAIIAN SUGAR REFINING CORPORATION, Ltd., Plaintiff, v. WINCO TANKERS, INC. and the SS WINDSOR VICTORY, her engines, tackle, boiler, etc., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

278 F. Supp. 648

CALIFORNIA AND HAWAIIAN SUGAR REFINING CORPORATION, Ltd., Plaintiff, v. WINCO TANKERS, INC. and the SS WINDSOR VICTORY, her engines, tackle, boiler, etc., Defendants.

No. 6788.

United States District Court E. D. Louisiana, New Orleans Division.

January 9, 1968.

As Amended January 24, 1968.

J. Barbee Winston, James Roussel, George W. Healy, III, New Orleans, La., for plaintiff.

Alfred M. Farrell, Jr., New Orleans, La., for defendants.

RUBIN, District Judge:

A cargo of bulk sugar carried aboard the SS WINDSOR VICTORY from Hawaiian ports in 1964 was damaged during the voyage by water leaking from a drainpipe that carried waste from the galley through the No. 4 hold of the vessel to a discharge valve. The narrow issue upon which decision turns is whether the carrier is responsible for the damage on the basis that it was caused by want of due diligence on its part to make the ship seaworthy.

The WINDSOR VICTORY sailed from Calcutta to the Hawaiian Islands to take on cargo. On the voyage, the ship's holds were cleaned, inspected and prepared to receive bulk sugar. After the WINDSOR VICTORY sailed from Hawaii on July 21, 1964, rough seas were encountered. On July 21, the vessel pitched heavily on rough seas. That night she pitched moderately. The next two days brought moderate seas and swells, followed by two days of confused swells. Regular soundings of the deep tanks were taken, and on July 27 water was found in the port forward deck tank of the No. 4 hold. Pumps were started but the daily soundings in the No. 4 port bilge continued to increase. The master and chief engineer took the tarpaulins off the hatch to see what could be done but, since all spaces below were filled with cargo, the hold was inaccessible.

However, as the water reduced the sugar to molasses, the bulk of the cargo was reduced, and, after several days, it became possible to get into No. 4 lower hold. The chief engineer crawled through the wet sugar, found the hole in the galley drain line, and put a temporary patch on it.

After the ship docked in New Orleans and cargo was discharged, it was found that about 1,000 tons of sugar had been damaged, and the defendant's surveyor reported that the loss amounted to $29,655.48.

The case is controlled by the Carriage of Goods by Sea Act of 1936, 46 U.S.C. § 1300 et seq. (COGSA). Section 3 of the Act (46 U.S.C. § 1303) sets out the absolute, affirmative, and non-delegable duties¹ of the carrier. The carrier is bound "before and at the beginning of the voyage, to exercise due diligence to—(a) Make the ship seaworthy * * * and (c) Make the holds * * * and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation."

In addition to imposing duties, the COGSA provides exemptions from liability. Section 4 (46 U.S.C. § 1304) relieves the carrier and the ship from liability "for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and * * * to make the holds * * * and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation * * *." It then states expressly what might otherwise be implied, "Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier * * *."

While the defendant contends the ship was seaworthy at the start of the voyage, it admits that, when an inside drain pipe leaks, the vessel becomes unseaworthy. It requires, then, a more detailed examination of the facts to determine whether the carrier has borne its burden of proving that it did exercise due diligence to make the ship seaworthy. The facts, as I find them, are:

The SS WINDSOR VICTORY was built in 1945 to the standard Victoryship type specifications. After a period of service, it was placed in the lay-up fleet in Mobile. When the defendant decided to acquire a Victory-type vessel, it inspected a number of them and picked this one as being in the best condition. The WINDSOR VICTORY was therefore reactivated, repairs and renewals were completed and the defendant acquired it on February 8, 1963. On that date, the American Bureau of Shipping surveyed the vessel and found her seaworthy.

The defendant stresses the thoroughness of the repairs and tests, mentioning the fact that there were 302 separate items described in detail on the "reactivation and general repairs specification" and quotes illustrative and pertinent paragraphs. But there is no mention in the specifications of any particular type of test on the piping, although there is a reference to testing the drains "to the satisfaction of A.B.S. and Owner's representatives." There was testimony that the galley drain pipe was filled with water and tested for leaks and later hammer tested by the Owner's independent port engineer.

The WINDSOR VICTORY was placed in service, in bulk cargo carriage, and went to sea for 17 months. She was surveyed on October 31, 1963, in connection with minor damage not related to the present litigation, and had an annual classification survey on January 15, 1964. No mention is made in the reports of these surveys of any special examination or test of the piping.

After several voyages, the WINDSOR VICTORY sailed to Calcutta, discharged cargo, and, on June 13, 1964, sailed in a lightened state for Hawaii to begin the voyage involved in this litigation under the standard form of bulk sugar charter. The owner warranted the vessel to be "tight, staunch, strong and in every way fitted for the voyage so far as the exercise of due diligence can make her so." The charter party adopted the COGSA contractually, but in any event the COGSA would have applied.²

On the voyage to Hawaii, the holds were cleaned and inspected. A wooden floor was built over the bottom of the lower No. 4 hold. The master made several trips to the lower No. 4 hold and visually inspected the bulkheads to be sure they were clean and dry.

The galley drain pipe in which the leak occurred runs from the 30 gallon sink, located above the No. 4 'tween deck, down the port skin of the ship, through the 'tween deck and into the lower hold. About 9 feet above the deck of the lower hold, the drain pipe turns into the skin of the ship. The lower end of the pipe is equipped with an overboard discharge valve. This is a clapper or swing-type check valve designed to permit waste water out of the line but to close against the sea water outside the line. It is not completely tight against sea-water, however, and there is usually some contamination by salt water inside the line when the vessel is loaded and the valve is below water level.

The pipe appeared to be in good condition. It had been painted with aluminum paint and this looked relatively bright and fresh. However, it was made of galvanized steel, presumably because the vessel was built under war-time conditions, rather than of copper or lead, which are preferable materials in normal circumstances.

The testimony of the vessel's chief engineer, Mr. Barber, was taken by deposition. He testified that, about a week before the bulk sugar cargo was loaded, he went into the lower hold to check on the construction of the wooden flooring. He went to the clapper valve of the galley drain pipe, looked it over, "flaked" the gasket, that is, tested it with his finger, found the gasket brittle, and later changed it. He said the Third Engineer, whose name was Cox, assisted him, but Cox did not testify. The Chief Engineer said he was working only about 18 inches from the point where the leak later occurred, and saw no signs of leak. He said the place where the pipe later leaked was "right in front of his face" when he was working. I find it difficult, however, to credit this testimony. The owner's other evidence indicated the gasket that was replaced was made of rubber, had been inserted new when the vessel was reconditioned, and would normally last more than seventeen months. The gasket was against the skin of the ship nine feet above the deck's floor, and it is passing strange that the Chief Engineer happened to flake it with his fingers in passing when the other testimony was that it was so high that it was necessary to work on a ladder to replace it. Nor does it escape notice that it would be unusual for the Chief Engineer himself to undertake to replace a gasket on a ladder in the hold.

When the vessel arrived at Hawaii on July 18, there was a condition survey of the cargo spaces for the joint account of the charterer and owner. Although the surveyor was inspecting for the purpose of noting any damage to the vessel that existed before loading so that these could not be charged to the charterer, he did not inspect the piping but he did check the shell frames and pipe guards in the lower No. 4 hold and noted no evidence of leakage or water damage.

On completion of discharge by the vessel in New Orleans, the galley drain pipe was removed, tested, surveyed, and sonically gauged for thickness. Later a metallurgical examination was made. As a result of the expert testimony and my own examination of the pipe, I find that it had gradually become corroded from the inside. The corrosion occurred slowly but the breakthrough was sudden, and it had not yet happened when the vessel was loaded. The weakened area broke through during the voyage, however, perhaps as a result of vibration of the vessel or a surge of water. The corrosion was not apparent on visual inspection since the surface paint was still in place but it would have been discovered by a hammer test or hydrostatic pressure test.

SEAWORTHINESS

Seaworthiness is reasonable fitness of the vessel to carry the cargo that she has undertaken to transport. The Silvia, 1898, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241; Martin v. The Southwark, 1903, 191 U.S. 1, 24 S.Ct. 1, 48 L. Ed. 65; R. T. Jones Lbr. Co. v. Roen...